Most employers are well aware of the rights and responsibilities around statutory maternity, paternity and parental leave and pay. What is less common, but equally important, is understanding the entitlements of staff who are in the process of adopting a child or who are having a child through surrogacy.
In this guide for employers, line managers and HR, we explain statutory adoption leave rights in the UK, including adoption pay, provides a useful overview of what the law says when it comes to employee entitlements in the context of adoption and surrogacy.
Who is entitled to statutory adoption leave and pay?
When a member of staff takes time off work to adopt a child or to have a child through a surrogacy arrangement, they may be eligible for statutory adoption leave and adoption pay, provided they meet the relevant requirements. The only exceptions to this are where an adoption is arranged privately, the individual is to become a special guardian, or where they adopt a stepchild or family member. However, there are different eligibility criteria for adoption leave and pay. As such, some staff will not qualify for both.
Statutory adoption leave criteria
To be eligible for statutory adoption leave, a person must:
- be an employee
- provide the employer with the correct notice
- provide proof of the adoption or surrogacy arrangement, if requested by the employer.
If adopting as a couple, only one person can take statutory adoption leave, although the other partner may instead be entitled to up 2 weeks’ statutory paternity leave. A couple can choose which of them takes adoption leave or paternity leave. To qualify for statutory paternity leave, a person must be an employee and have worked continuously for their employer for at least 26 weeks by the qualifying week.
For those employees adopting a child from overseas with a partner, they must sign form SC6 to confirm that they have chosen to take statutory adoption leave and adoption pay, and will therefore not be taking statutory paternity leave and pay. The other person must also complete form SC5 when adopting from abroad, to confirm that they have opted to take statutory paternity leave and pay. If an employee is adopting a child from abroad on their own, they will not be required to complete the form SC6 declaration.
Statutory adoption pay criteria
In employment terms, adoption leave is referred to as a day one right, with no qualifying service period. In contrast, to be eligible for statutory adoption pay, a person must:
- have been continuously employed by the same employer for at minimum of 26 weeks by the week they were matched
- with a child or notified of a fostering for adoption placement
- earn on average at least £123 a week before tax (for 2022/23) in an 8-week period
- provide the employer with the correct notice
- provide proof of the adoption or surrogacy.
The eligibility requirements will be the same if an employee is adopting from overseas, except that they must have been continuously employed by their employer for at least 26 weeks when they start receiving adoption pay. The employee must also sign form SC6.
For those employees in a surrogacy arrangement, the requirements are again the same, except that they must have worked continuously for the employer for at least 26 weeks by the 15th week before the baby is due. The employee must also intend to apply for a parental order and expect that order to be granted, where they do not have any child-related convictions ‘and’ the birth mother or father have agreed to the arrangement. Such an order will transfer legal parenthood from the surrogate to the intended parents.
If the employee is genetically related to the surrogate child, as either the egg or sperm donor, they can choose to get paternity leave and pay instead of adoption leave and pay, but they cannot get both. Importantly, if the intended parents are not genetically related to the child, they will need to apply for an adoption order instead of a parental order.
How long does statutory adoption leave last?
Statutory adoption leave is for 52 weeks, made up of 26 weeks’ ordinary leave and 26 weeks’ additional leave. The period of adoption leave can start:
- on the date that the child begins living with the employee for UK adoptions, or up to 14 days before the expected placement date starts
- when the child arrives in the UK for overseas adoptions, or within 28 days of this date
- the day that the child is born, or the day after, for any surrogacy arrangement.
In the context of a fostering for adoption placement, statutory adoption leave can begin either when the placement is made or 14 days before the expected placement date, or at the point when the child is matched with the employee for adoption. However, the employee will only be eligible for one period of adoption leave per placement.
If an employee is entitled to statutory adoption leave, they can also get paid time off work to attend 5 adoption appointments after they have been matched with a child, whilst the second adopter will be permitted to take unpaid time off for 2 appointments.
How much is statutory adoption pay?
Statutory adoption pay is paid for up to 39 weeks and will start at the same time as the period of adoption leave. This should be paid in the same way as the employee’s wages, for example, monthly or weekly, with deductions made for tax and National Insurance.
The weekly amount payable for statutory adoption pay is:
- 90% of the employee’s gross average weekly earnings for the first 6 weeks
- £156.66 (2022/23) or 90% of the individual’s gross average weekly earnings, whichever is the lower, for a further 33 weeks.
This is the minimum amount that an employer must pay an eligible member of staff, where they cannot pay them any less than this. However, the employer can choose to pay their staff more under the terms of any occupational adoption pay scheme.
Employers can use the online adoption pay calculator at GOV.UK to check an individual’s eligibility to statutory adoption pay and their weekly adoption pay entitlement. For members of staff who are not classed as ‘employees’, such as agency workers, casual workers and some zero-hours contract workers, even though they will not be entitled to statutory adoption leave, they may still qualify for statutory adoption pay. However, an agreement will need to be reached as to how much leave the worker will be able to take.
What statutory notice is required for UK adoptions?
When it comes to providing an employer with notice of statutory adoption leave, an employee must tell their employer within 7 days of being notified that they are being matched with a child or expecting a fostering for adoption placement:
- how much adoption leave they would like
- their adoption leave start date
- the expected or actual date that the child will be placed with them.
Having been given notice by the employee, the employer must confirm in writing the adoption leave start and end dates within a period of 28 days. If the expected date of placement changes, the employee must tell their employer at least 28 days before their original start date or the new start date, whichever is earlier. The employee must also give the employer at least 8 weeks’ notice if they want to change their return to work date.
To claim statutory adoption pay, the individual must tell their employer when they want their adoption pay to start, giving at least 28 days’ notice, unless the time between the child being matched and being placed is less than this. The employer must confirm within 28 days how much pay the person will receive, with start and end dates. In circumstances where a member of staff is not eligible for statutory adoption pay, the employer must provide form SAP1 explaining the reasons for this within 7 days of making their decision.
In respect of both notice for statutory adoption leave and adoption pay, the employer can ask for that notice in writing. The employer may also ask for proof of the adoption. Importantly, an individual must give the employer proof of adoption to qualify for statutory adoption pay, whereas proof is not strictly required to qualify for statutory adoption leave, not unless the employer specifically request this.
Proof of adoption must show the employee’s name and address, plus the adoption agency’s details, as well as the match date and date of placement. To satisfy the notice requirement, the individual will therefore usually need to provide either their matching certificate and/or a letter from the agency. In the case of fostering for adoption placements, the person will again need to provide written evidence of the placement from the adoption agency.
What notice is required for overseas adoptions and surrogacies?
The rules around statutory notice periods are slightly different if an employee is either adopting from overseas or they are having a child through a surrogacy arrangement.
For overseas adoptions, the employee must tell their employer the date of their official notification and when they expect the child to arrive in the UK within 28 days of receiving that notification. If the employee has worked for their employer for less than 26 weeks, they can tell their employer within 28 days of the Sunday in their 26th week instead.
The employee must also tell the employer:
- the actual date that the child arrives in the UK, within 28 days of this date
- how much leave they want and their start date, giving the employer 28 days’ notice.
The employer then has 28 days to notify the employee of their leave start and end dates. If the employer requests proof of an overseas adoption, the employee must provide the official notification from the relevant UK authority confirming that they are allowed to adopt and proof of the date that the child is due to arrive in the UK, such as a plane ticket.
If the expected date of placement for overseas adoptions changes, the employee must again tell their employer at least 28 days before their original start date or the new start date.
If the employee is using a surrogate to have a baby, they must tell their employer the due date and when they would like to start their adoption leave at least 15 weeks before the expected week of birth. The employer may ask for this in writing. The employer may also ask the employee to provide a written statement, known as a statutory declaration, to confirm that the employee intends to apply for a parental order within the 6-month period after the child is born ‘and’ that they expect an order to be granted. The employer will then have 28 days to write to the employee confirming their leave start and end dates.
What are an employee’s rights during adoption leave?
When an employee is absent from work on statutory adoption leave, as with any other type of statutory leave, all their contractual rights, except the right to normal pay, will continue during the period of both ordinary and additional adoption leave. Their statutory employment rights will also be protected. This includes their right to accrue paid holiday and the right to pay rises, in addition to the right to return to work at the end of their leave.
What are an employee’s rights on their return to work?
The extent of an employee’s rights when returning to work after taking statutory adoption leave will very much depend on how much leave they choose to take.
For those employees who take up to 26 weeks’ adoption leave, they will be entitled to return to their previous job role. For those that take more than 26 weeks’ leave, they again have the right to return to the same job but, if that is no longer reasonably practicable, the employer must offer a suitable alternative job on the same or similar terms and conditions. The employee will also be protected against dismissal for reasons relating to their leave.
DavidsonMorris’ employment lawyers support employers with all aspects of workforce management, including statutory entitlements for adoption and other family-related leave and pay. For advice on adoption policy or on a specific entitlement issue, contact us.
Adoption leave FAQs
How long do you get for adoption leave?
Statutory adoption leave is for 52 weeks, comprising 26 weeks' ordinary leave and 26 weeks’ additional leave. The period of leave can start up to 14 days before the date the child begins living with the employee.
Who qualifies for adoption leave?
To qualify for statutory adoption leave, an individual must be an employee, provide the employer with the correct notice, within 7 days of being matched with a child, and provide proof of the adoption, if requested by the employer.
Do you get leave from work if you adopt?
You may qualify for statutory adoption leave if you are an employee adopting a child from either in the UK or overseas, unless the adoption is arranged privately, or where you are adopting a stepchild or family member.
How long is adoption leave in UK?
UK statutory adoption leave is for 52 weeks, whilst statutory adoption pay, where eligible, is payable for up to 39 weeks. However, to qualify for adoption leave and adoption pay, the employee must provide the employer with the correct notice.
Last updated: 3 January 2023